01963373
02-01-1999
Gretchen Koontz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gretchen Koontz v. United States Postal Service
01963373
February 1, 1999
Gretchen Koontz, )
Appellant, )
)
v. ) Appeal No. 01963373
) Agency No. 1-C-151-1041-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
On March 29, 1996, Gretchen Koontz (hereinafter referred to as appellant)
timely filed an appeal to the Equal Employment Opportunity Commission
(the Commission) from the United States Postal Service's (hereinafter
referred to as the agency) final decision on her equal employment
opportunity complaint, finding no discrimination. The appeal is accepted
in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
Whether the agency discriminated against appellant on the basis of
physical disability (spina bifida) when on June 9, 1994, she was rejected
from further consideration for employment.
BACKGROUND
Appellant filed a formal EEO complaint alleging disability discrimination
(spina bifida lumbar myelomeningocele and hydrocephalus) and reprisal
because she was not hired for the position of Casual Clerk after being
scheduled for orientation in February 1994. The agency accepted the
complaint and provided an investigation. Appellant did not request a
hearing before an EEOC Administrative Judge. The agency issued a final
decision concluding that appellant was not subjected to either disability
discrimination or reprisal. Appellant appealed that determination.
Appellant applied for a position as a Casual Clerk, pursuant to her
referral by the Office of Vocational Rehabilitation. On February 11,
1994, she was interviewed by the Human Resource Specialist, and in May
1994 she was sent for a drug and alcohol examination. She was also
required to undergo a medical examination and receive clearance through
the Postal Medical Officer. The Medical Examination and Assessment Form
was completed and signed by the local medical officer, Agency Physician
A on May 14, 1994. The portion of that form that would evaluate whether
appellant would be medically qualified for performing the essential
functions of a position is not completed. However, the doctor did
complete the other portion of the form and checked off the form block
"No limitations/restrictions". Appellant indicated in counseling that she
was asked during this preliminary period about tasks she could perform,
transportation, and accessibility.
The Human Resource Specialist indicated that appellant's mother, an
agency employee, had contacted her at some point, presumably prior to
February 1994, to inquire as to the procedure to retain appellant on her
health plan after appellant reached the age of 22. The Human Resource
Specialist stated that pursuant to this procedure, appellant's mother
submitted medical documentation from appellant's personal physician,
which seemed contradictory to the findings of Agency Physician A.
Appellant's physician submitted medical documentation dated February
7, 1994, indicating that appellant was diagnosed with spina bifida
lumbar myelomeningocele and hydrocephalus resulting in lower extremity
paralysis. The physician stated that appellant ambulated with a full
hip-knee-ankle-foot orthosis and cuff crutches for short distances, and a
wheelchair for long distance mobility. The documentation indicated that
appellant was unable to care for her medical needs without supervision.
A Form FPM 890-1 dated May 24, 1994, was completed by the agency's
Associate Medical Officer, Agency Physician B. On the form, the
Physician B indicated that, based on the medical evaluation submitted
to the office by appellant's personal physician, it was determined
that appellant was incapable of self-support and was thus eligible
for continued coverage under her mother's health benefit enrollment.
It was also indicated on the form that the disability would preclude
appellant from employment in all occupations, and that she was incapable
of working at a self-supporting job. The incapacity was approved without
time limitation.
By letter dated June 9, 1994, appellant was informed that she would no
longer be considered for employment with the agency based on the review
of the medical documentation submitted by her physician. It was stated in
the letter that the documentation submitted by the physician to establish
the need for her continued coverage by her mother's health benefits
indicated that she was incapable of self-support in all occupations,
and that such status was approved without time limitation.
In a letter to Agency Physician B, dated June 29, 1994, appellant's
physician stated that his letter of February 7, 1994 was to certify that
appellant had a spina bifida condition, and thus should be considered
for continued coverage under her mother's health plan. He stated that
there seemed to be a misinterpretation of his conclusions, as he did
not mean that there were no occupations that appellant could perform
with or without modifications to the job. Agency Physician B issued a
memorandum to the personnel office indicating that, based on the more
recent statement from appellant's physician, it appeared that appellant
was eligible for consideration for employment.
The record contains an affidavit from the Human Resources Specialist
(Specialist) in which she stated that appellant was not hired because such
action would have been in conflict with the medical statements provided by
appellant concerning her request to remain under her mother's health plan.
She further stated that she believed appellant's disability would have
caused her difficulty in lifting and reaching the top of a mail case.
The Specialist indicated that appellant was considered in vacancies for
positions such as a Mailhandler, Carrier, and Clerk; however, appellant
could not perform the minimal functions of these positions, as required
by reasonable accommodation regulations. When she became aware of the
conflict with the medical statement, the Specialist explained that she
no longer considered appellant, and she informed the counselor that she
would consider other applicants from the counselor's program, or from
other rehabilitation offices.
The Senior Personnel Services Specialist (Senior Specialist) indicated
that while the agency received subsequent documentation from appellant's
physician, which stated that appellant could be employed in specific
occupations with or without accommodation, the letter did not present
any new medical information that appellant's medical condition was
different than previously described in the February 1994 letter. The
Senior Specialist indicated in her affidavit that the position for which
appellant was considered was the limited casual appointment, but that
there was no need for such position "at present."
In its final decision, the agency determined that appellant failed to
establish a prima facie case of reprisal discrimination because there
was no evidence that she had any prior EEO activity. With regard to
appellant's allegation concerning her disability claim, the agency
determined that appellant failed to establish a prima facie case of
disability discrimination, because she could not establish that she was a
qualified individual with a disability. It stated that appellant failed
to offer any persuasive evidence that she could perform the essential
functions of the Clerk's position with or without accommodation. It also
stated that evidence revealed that appellant's physician was of the
opinion that appellant was unable to care for her medical needs without
supervision, and required a wheelchair for long distance mobility.
Furthermore it found that it had articulated a legitimate,
nondiscriminatory reason for rejecting appellant from employment, as the
Specialist stated that appellant was unable to perform the requirements
of the position of Clerk. And, while appellant was considered for
the positions of Mailhandler and Carrier, it was found that she was
also unable to perform the essential functions of these positions.
On appeal, appellant argues that she engaged in prior EEO activity when
she opposed the agency's discriminatory rejection by the submission
of her physician's June 29, 1994 letter. She argues that her action in
opposition to the agency's rejection was to request that her physician
write a letter to the medical director to explain that his earlier letter
was submitted in order for her to receive insurance coverage under her
mother's policy, and not to qualify for employment.
Appellant argues that the agency has failed to articulate a
nondiscriminatory reason for its adverse action. Appellant notes
that the investigator never interviewed the personnel official who
received Agency Physician B's July 27, 1994 memorandum indicating that
appellant was eligible for employment. Appellant argues that there
was no explanation as to why she was not hired for the position of
Casual Clerk in the Central Forwarding Section through the program for
individuals with disabilities, or why her eligibility was not renewed.
Appellant also contends that the physical examination by the agency
medical officer showed that she had a significant medical history,
but no physical limitations.
Appellant also disputes the finding that she failed to show that she
is a qualified individual with a disability, as the record showed that
she was under consideration for a specific position as a Casual Clerk in
the CFS. Appellant argues that there is no position description for the
Casual Clerk position in CFS, nor is there evidence of any reasonable
accommodation analysis or undue hardship analysis. Furthermore, the
examination form by Agency Physician A reported that appellant had no
restrictions, and that subsequently her own physician reported that she
was eligible for consideration. Appellant argues that the Commission has
taken the position that a determination that a person who is disabled
for purposes of obtaining medical or social security benefits is not
dispositive of the question of whether the person is a qualified person
with a disability. Thus, the letter submitted concerning medical benefits
is not a justification for the denial of work. Appellant contends that
the record contains no evidence that she could not perform the duties of
the position she was offered. Appellant asserts that the Human Resource
Specialist's affidavit makes it clear that the reason she was not hired
was because of a conflict in a medical statement, and that such reason
does not constitute a legitimate basis for a refusal to hire. Appellant
argues that in order to avoid liability, the agency must provide evidence
that it discussed a reasonable accommodation for the offered position.
Instead, the offer of employment was withdrawn solely upon a medical
statement that was made to receive benefits. She argues that the agency
has not established that she could not perform the essential functions
or that it would be an undue hardship to accommodate her.
In its comments on appeal, the agency rejected appellant's argument
that she engaged in prior EEO activity when she opposed the denial
of her employment. The agency argues that while appellant contends
that it should have evaluated reasonable accommodation, appellant's
physician concluded that appellant was unable to care for herself
without supervision.
ANALYSIS AND FINDINGS
At the outset of the analysis, we find that the agency properly found
that appellant failed to establish a prima facie case of reprisal. There
is no indication that appellant previously engaged in EEO activity.
Although appellant argues that her physician's letter was an act of
opposition to a discriminatory practice, such letter did not indicate
on its face that it was intended to protect appellant's EEO rights.
In a complaint alleging discrimination based upon physical disability,
an appellant must first establish that he or she is a member of the
class of persons protected by the Rehabilitation Act of 1973. A person
with a disability is one who has a physical or mental impairment which
substantially limits one or more of that person's major life activities,
has a record of such an impairment, or is regarded as having such an
impairment. 29 C.F.R. �1614.203. There is ample medical evidence in
the record establishing that appellant's spina bifida condition renders
her a person with a disability. The question presented in this case is
whether or not appellant is a "qualified" individual with a disability as
defined in 29 C.F.R. �1614.203(a)(6). See also 29 C.F.R.�1630.2(m).<1>
EEOC Regulation 29 C.F.R. �1614.203(a)(6) defines a qualified disabled
person as a disabled person who, with or without reasonable accommodation,
can perform the essential functions of the position in question. EEOC
Regulation 29 C.F.R. �1614.203(c) requires an agency to make reasonable
accommodation to the known limitations of a qualified disabled employee,
unless the agency can demonstrate that the accommodation would impose
an undue hardship on the operation of its program.
The agency determined that appellant was not a qualified individual with a
disability because of documentation submitted by her physician indicating
that she could not care for her medical needs without supervision.
Such documentation was relied upon by Agency Physician B in determining
that appellant's disability would preclude her from employment in all
occupations, and render her incapable of working at a self-supporting
job. Thus, the agency determined that because appellant had submitted
documentation showing that she was disabled from working, she was not
qualified for work. However, we note that an individual's representations
made pursuant to an application for disability benefits do not preclude
a determination that the individual is a qualified individual. The
Commission has determined that the definitions of "disability" and
"qualified individual with a disability" under the Americans with
Disabilities Act are tailored to the "broad remedial purposes of
the Act", and therefore, differ from definitions used for other laws
or benefit programs. See EEOC Enforcement Guidance on the Effect of
Representations Made in Applications for Benefits on the Determination of
Whether a Person is a "Qualified Individual with a Disability" Under the
Americans with Disabilities Act of 1990, No. 915.002, February 12, 1997.
The determination of whether a person is a "qualified individual with
a disability" requires an individualized, case-by-case assessment of
the specific abilities of the person, the specific requirements of the
position that the person holds or desires, and the manner in which the
person may be able or enabled to meet those requirements.
In this instance we find that the record is unclear as to whether
appellant was a "qualified individual." Appellant appears to be qualified
for a Clerk position. However, the record does not establish whether
appellant was able to perform the essential functions of any position
that was vacant at that time. Appellant was initially approved for duty
by Agency Physician A. Despite his first findings concerning appellant's
ineligibility, Physician B later informed personnel officials that it
appeared that appellant could be eligible for employment. However,
agency officials did not provide appellant with further consideration.
While the Senior Specialist indicated that appellant failed to provide
new documentation that would explain why her medical condition was changed
from the time of the February 1994 documentation, there is no indication
from the record that the agency asked appellant for clarification of
her condition.
Furthermore, the record does not indicate that the agency identified the
essential functions of the position for which appellant was referred.
While the Specialist stated that appellant was considered for Carrier
and Mailhandler positions, and that she could not be accommodated in
these positions, there was no indication from the record that she was
considered for the duties in the Central Forwarding Section processing
missed and unzipped mail. There was no evidence that the agency made an
individualized assessment of appellant's disability, qualifications,
or possible accommodations with regard to this position. See 29
C.F.R. �1630.2(o)(3). Appellant's rejection was based solely upon the
documentation submitted by her physician in February 1994.
Based on a review of the record, we find that the record contains
insufficient information for a determination as to whether appellant is a
"qualified individual with a disability." Accordingly, the Commission
orders the agency to conduct a supplemental investigation to determine
whether appellant is a "qualified individual with a disability."
This inquiry shall include a determination as to which positions were
available during the period of appellant's consideration.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's finding of no reprisal. The Commission REMANDS appellant's
allegation of disability discrimination for further consideration of
appellant's status as a qualified individual with a disability.
ORDER
The agency is ORDERED to take the following action:
(1) The agency is ORDERED to conduct a supplemental investigation
to determine whether appellant is a "qualified individual with
a disability." The agency shall identify the positions for which
appellant was considered, including the positions in the Central
Forwarding Section, and set forth the essential functions of each.
The agency shall also identify any other positions available at the
time appellant was being considered and the essential functions of
these positions. The agency shall engage in a dialogue with appellant
to ascertain her qualifications for the particular jobs, and identify
the limitations resulting from the disability, as well as potential
reasonable accommodations that could overcome those limitations.
The agency shall then determine whether appellant can perform the
functions with or without reasonable accommodation. Appellant shall
fully cooperate in the agency's inquiry.
(2) Within sixty (60) calendar days of the date this decision becomes
final, the agency shall issue a final decision with its determinations
on this complaint.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Feb. 1, 1999
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 By amendment effective October 29, 1992, the Rehabilitation Act
has been modified to incorporate the ADA standards in the context of
nonaffirmative employment when determining whether it has been violated.
See The Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569,
106 Stat 4344. To the extent that the ADA's requirements exceed the
requirements under �1614, federal agencies must follow the ADA standards.
We make this finding because the amendments to the Rehabilitation Act,
effected October 29, 1992, occurred after the effective date of the
�1614 regulations.